Proposition 8: Kind of a victory

The Supreme Court struck down key parts of the federal Defense of Marriage Act in July, opening the way for gay marriage in California.

Karin Klein

Is this a victory? In a practical sense, it’s tremendous news that the U.S. Supreme Court has paved the way for same-sex marriages to eventually resume in California. But as a statement of gay rights, the decision to return the case to the lower court means little.

After state leaders refused to defend the law in court, a group of the measure's supporters took their place, but it was always doubtful whether they had legal standing to do so. As Chief Justice John G. Roberts Jr. said, "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to.”

California is expected, after some more legal wrangling, to (finally) join the growing roster of states and nations that have recognized the marriages of same-sex couples, and without the satisfaction or fanfare of having moved the issue forward in any bigger way.

The top elected leaders of California should defend the state’s laws, even its odious laws. That’s especially true when those laws have been voted into law directly by the people.

As the dissenters to the Supreme Court majority noted, voter initiatives are different from other laws. They are, in effect, the public's attempt to get around the Legislature, to act in spite of it. If those leaders are forever able to block them by refusing to defend the initiative in court, the initiative process loses much of its power.

The end of a time of bigotry in California is a great thing, but it’s not as great as legal recognition of the ugly ways in which Proposition 8 deprived one segment of the state’s population of a right it already held.

And yet, that recognition occurred in the trial court phase, where Proposition 8’s supporters were unable to present even a mildly persuasive case, and in fact ended up being unable to list any ways in which same-sex marriage would harm traditional marriage.

One of the defense witnesses said gay marriage would be good for the stability of gay couples and their families; long after the trial, he changed his viewpoint of same-sex marriage and became a supporter.

In other words, the merits of the case might not have had a hearing at the high court, but they certainly received thorough and very public consideration at the trial court and in the decision issued by then-Chief U.S. District Judge R. Walker. On its merits, there was no valid reason for Proposition 8, and now we can almost certainly consider its days numbered.